Casselman v. Casselman et al.
[Indexed as: Casselman v. Casselman]
Ontario Reports
Ontario Superior Court of Justice,
Tucker J.
February 26, 2014
119 O.R. (3d) 631 | 2014 ONSC 1267
Case Summary
Civil procedure — Parties — Adding or substituting — Plaintiff injured in motor vehicle accident allegedly caused by unidentified motorist while she was in her son's vehicle — Plaintiff's lawyer notifying son's automobile insurer at early date of potential claim under unidentified/uninsured motorist coverage — Statement of claim naming only plaintiff's own insurer and her son as defendants — Plaintiff permitted to add son's insurer as party to claim in addition to her own insurer after expiry of limitation period — Plaintiff having always intended to name son's insurer and that insurer suffering no prejudice from being included in claim.
The plaintiff was injured in a motor vehicle accident while she was in a vehicle owned and operated by her son. The accident was allegedly caused by an unidentified driver. Economical, the automobile insurer of the plaintiff's son, was liable for any damages which were found to have arisen as a result of the negligence of an unidentified driver. The plaintiff's lawyer notified Economical at an early date of a potential claim under the unidentified/uninsured coverage. However, when the statement of claim was issued, it named only the plaintiff's own insurer, Aviva, and her son as defendants. The plaintiff brought a motion to substitute the name Economical for the name Aviva or, alternatively, to amend her statement of claim to add Economical as a party defendant.
Held, the motion should be granted.
The plaintiff's intention had always been to name Economical as a defendant, and Economical suffered no prejudice from being included in the action notwithstanding the expiry of a limitation period, given that it was put on notice of the claim and received relevant information concerning it. As the plaintiff referred to both "uninsured, unidentified and inadequately insured motorist coverage" in her claim, it was appropriate to add Economical as a party in addition to Aviva rather than substituting Economical for Aviva. [page632]
Graham v. John Doe, [2007] O.J. No. 3960, 54 C.C.L.I. (4th) 314, 2007 43495, 161 A.C.W.S. (3d) 225, 161 A.C.W.S. (3d) 227 (S.C.J.), distd
Stekel v. Toyota Canada Inc. (2011), 107 O.R. (3d) 431, [2011] O.J. No. 4885, 2011 ONSC 6507 (S.C.J.), folld
Statutes referred to
Insurance Act, R.S.O. 1990, c. I.8 [as am.]
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 21(2)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 5.04(2)
MOTION to add or substitute a party.
Paul R. Sweeny, for plaintiff.
Grant E. Black, for defendant Aviva Canada Inc.
Neil Searles, for proposed defendant Economical Insurance Group.
TUCKER J.: —
Issues
[1] Should the plaintiff be allowed to substitute the name of the party defendant Aviva Canada Inc. ("Aviva") with the name Economical Mutual Insurance Company of Canada? In the alternative, should the plaintiff be allowed to amend her claim to add as a party defendant Economical Mutual Insurance Company of Canada ("Economical")?
Facts
[2] The plaintiff who was insured by Aviva was injured in a motor vehicle accident in a vehicle owned and operated by her son Steven Casselman ("Steven"). The accident was allegedly caused by an unidentified vehicle. By contract, Economical was Steven's insurer. By law, pursuant to the provisions of the Insurance Act, R.S.O. 1990, c. I.8, Economical is liable for damages which are found to have arisen as a result of the negligence of an unidentified vehicle. The plaintiff's lawyer swore an affidavit in support of the motion saying that she had always intended to name Economical as a defendant in the action, but when the statement of claim was issued the only defendants named were Aviva and Steven Casselman.
[3] The plaintiff's lawyer had written Economical on or about June 3, 2009, advising them of a potential claim under the unidentified/uninsurance coverage and asked that the letter be passed on to the claims department. A police report was enclosed [page633] with that letter which also suggested that the Economical claims department should determine if the unidentified driver can be identified. The accident occurred January 30, 2009. A follow-up letter was sent again by the plaintiff's lawyer to Economical on July 6, 2009. On February 4, 2010, the plaintiff's lawyer sent by courier to Economical the medical brief and accident benefits brief. Further information about the claim was forwarded by the same lawyer to Economical by letters dated April 8, 2010, February 8, 2011 and February 11, 2011. The statement of claim was issued January 27, 2011 and did not name Economical nor did it allege any claim against an uninsured driver.
Position of the Parties
[4] It is the plaintiff's position that this is a "misnomer" case and the defendant Economical would not be prejudiced by the proposed amendments or either of them. There has been no loss of witnesses, and discoveries have not yet been held. The litigating finger test provides that where there is a coincidence of intention on the part of both parties an amendment may be made despite the passage of a limitation period. In other words, where the plaintiff always intended to name the defendant and the proposed defendant was aware that it was to be named, the necessary criteria have been met. Here, the plaintiff argues the affidavit of the plaintiff's lawyer swears that she intended to name Economical as a defendant, and where Economical had been put on notice of the potential suit the coincidence of intention or litigating finger test has been made out.
[5] Economical disputes the plaintiff's position arguing first it is not a "misnomer" case but a substitution case. Further, although at the time of the lawyer's notification of the company the potential lawsuit was an "unidentified" motorist case, the status of the case could have changed by the identification of the motorist removing the statutory liability of Economical for an uninsured driver. Further, the insurance company points out that since Economical was the insurer of Mr. Casselman, the claim asserted against it and/or of which it was notified could also have been notification of an accident benefits claim or a tort claim. I find that the plaintiff's lawyer's first letter makes it clear that notification is being given to Economical because of the unidentified driver and does not assert any other claim. In any event, Economical takes the position that there is no coincidence of intention and that it will be prejudiced by the amendment of a claim against it beyond the relevant limitation period. [page634]
[6] Aviva supports the position taken by the plaintiff indicating that Economical had notice, that the claim as issued is an obvious error and should simply be corrected without further litigation.
The Law
[7] Rule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that "[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment". The Limitations Act, 2002, S.O. 2002, c. 24, Sch. B by s. 21(2) allows for the correction of a misnaming or misdescription of a party even after the expiry of a limitation period.
[8] It is Economical's position, as noted, that given the wording of the plaintiff's claim and the failure to allege a statutory-based claim against it, that this is not a misnomer case but a substitution case which should not be allowed after the expiry of the limitation period. In part, it cites for support of this argument the case of Graham v. John Doe, [2007] O.J. No. 3960, 2007 43495 (S.C.J.) ("John Doe"). There, the master rejected the misnomer request based upon the language of the claim. On a review of that case, it is on its facts clearly distinguishable from the one at bar. There, the party sought to be added was only determined to be a potential party at the discovery and was not known at the time of the claim. In other words, the party to be "added" was not a possible source of recovery at the time the action was launched and, as such, I find could not be considered a misnomer. Here, although the wording of the claim may not have referred to the statutory basis for the claim against Economical, it clearly asserts a claim for uninsured/unidentified motorist coverage. In addition, based upon the evidence filed in support of the motion, the intention had always been to name Economical and, again, on such basis is distinguishable from the John Doe case.
[9] I do not see any prejudice to the defendant by including it in the action notwithstanding the passage of the limitation period, given that they were put on notice of the claim and received relevant information concerning it. Discoveries have not yet been held. The only issue in my mind is whether Economical should be added to Aviva or substituted for it.
[10] Following the reasoning in Stekel v. Toyota Canada Inc. (2011), 107 O.R. (3d) 431, [2011] O.J. No. 4885, 2011 ONSC 6507 (S.C.J.) ("Toyota"), it appears appropriate to add Economical [page635] given that the plaintiff did refer to both "uninsured, unidentified and underinsured and inadequately insured motorist coverage" in its claim. Aviva would be the defendant providing the one type of coverage and Economical the other. This I find is similar to the argument successfully made in Toyota where two defendants could potentially provide a remedy to the plaintiff.
[11] Accordingly, I grant the plaintiff's motion to add Economical as a party to the claim in addition to Aviva. I note, however, that the proposed amendment to the claim as set out in Schedule A to the plaintiff's factum refers to "companies", in para. 4, but speaks only to Economical, while para. 12 claims damages against both. If the plaintiff wishes to provide an amended Schedule A and the defendant consents to such amendment, I will grant an order to that effect.
[12] The parties agreed upon the costs of this matter, which was that the successful party should be awarded $5,000 in total. Accordingly, the plaintiff is entitled to its costs in the amount of $5,000.
Motion granted.
End of Document